The Medical Defence Union (MDU) has issued advice to its members faced with difficult decisions and competing interests during the Covid-19 outbreak.

It said that no action to withdraw life-saving treatment which is in the patient’s interests should occur unless the court first rules this is lawful.

As the law currently stands, if a doctor is faced with the dilemma of competing interests between two patients and the possibility of withdrawing treatment which is in the patient’s best interests from that patient, in order to treat another patient, the doctor should first ensure their Trust makes an emergency application for a declaration to the Court of Protection.

Dr Christine Tomkins, MDU chief executive said: “The question has been raised about whether doctors may face criminal and regulatory investigation when making emergency decisions about the administration and withdrawal of life prolonging treatment.

“We hope this dilemma will not arise in practice, given the tremendous efforts which have been made by the NHS to increase capacity to meet the demands of Covid-19.”

BMA stance on difficult decisions during the pandemic

The British Medical Association recently published ethical guidance for doctors working under extreme pressure under the pandemic.

It said that many doctors are being diverted into new and unfamiliar areas of work and finding themselves working at or even beyond the ordinary limits of their competence or expertise. Retired doctors are returning to practice, and final year medical students are being fast-tracked into front-line roles. Resources are becoming increasingly restricted and choices of available care limited.

The guidance recognised that doctors would be concerned about their ability to provide safe and ethical care and whether their actions may attract criminal, civil or professional liability.

It added: "From an ethical and professional regulatory perspective – which is also likely to govern the approach of the Courts if there are any legal challenges – doctors should be reassured that they are extremely unlikely to be criticised for the care they provide during the pandemic where decisions are: – reasonable in the circumstances – based on the best evidence available at the time – made in accordance with government, NHS or employer guidance – made as collaboratively as possible – designed to promote safe and effective patient care as far as possible in the circumstances.

"Should decisions be called into question at a later day, they will be judged by the facts available at the time of the decision, not with the benefit of hindsight."

Covid-19 decision support tools

The MDU advice comes after UK doctors were left confused by the publication of a Covid-19 decision support tool in the Financial Times at the weekend.

It said that doctors coping with the coming peak of the coronavirus outbreak will have to “score” thousands of patients to decide who is suitable for intensive care treatment.

The tool which scored patients on age, underlying conditions and frailty was slammed by organisations such as NICE, the British Geriatrics Society, the Intensive Care Society (ICS) and Royal College of Anaesthetists.

NICE said in a statement that it did not develop or endorse the Covid-19 decision support tool and the ICS said there was current ICU capacity in the UK and usual clinical decision-making continued to apply.

In a statement the BGS added: "It is important that decisions about treatment in intensive care, including intensive care management, are made on an individualised basis, with full knowledge of the patient’s medical history and their physical fitness. Many older patients living with frailty do not benefit from being put on a life support machine, but we must avoid blanket approaches to deciding who can access which medical treatment."